And Away We Go…..

Last night I stayed up late, working on a grad school recommendation for one of my PK colleagues. As usual, I had my Twitter feed open, and right around midnight, I heard an unusual amount of chirping for that hour. Why? Tech reporters were writing that the FCC had just announced that its December 21st meeting agenda would propose rules for an open Internet, or network neutrality. The Chairman would circulate draft rules and an accompanying explanation, or order, to his colleagues, which would then be voted on in the December meeting.

Yes, the midnight announcement was quite odd, and I was not happy that I was faced with a decision to wake up PK's Communications Director Art Brodsky soon thereafter to send out our press release. But I was also excited - after five long years of fighting for rules of the road that will ensure that the Internet remains the most open and democratic medium of all time, the process for turning those rules into the law of the land had finally begun.

That the circulation of an FCC order to the other commissioners is the beginning, and not the end, of this process, is important to emphasize here. We have a good sense of what is in the order that is now circulating, and while there is a lot good in it, it still falls appreciably short of the kind of rules that Public Knowledge believes is necessary to preserve an Internet that has proven, in Chairman Genachowski's own words spoken today, "to be such a powerful engine for innovation, creativity and economic growth." That is why over the next three weeks, Public Knowledge will be working with the other commissioners (and more specifically, Commissioners Copps and Clyburn, since Commissioners McDowell and Baker have both said today that they will not support ANY rules) strengthen the current draft rules and order to ensure that they will give the FCC the ability to protect consumers and the open Internet.

So what does Public Knowledge want improved? Three things:

1. The rules governing wireless Internet access must be strengthened. Since the order largely follows the never-introduced legislative framework developed by Representative Henry Waxman, we know that the rules for wireline and wireless broadband Internet access are treated differently. Under that framework, wireline Internet access providers are prohibited from "unjustly or unreasonably" discriminating when transmitting traffic. Wireless Internet access providers are only prohibited from blocking "lawful Internet websites" or "lawful applications that compete with the provider's voice or video telephony services,..." This sets up a world with two Internets, one wired and one wireless, which in turn disproportionately affects people of color and America's poor, who tend to rely more on mobile wireless broadband. The FCC can start by prohibiting blocking of any lawful application, service, content or device and then can provide either a technological or time limited glide path to full non-discrimination.

2. The definition of "broadband Internet access service" must be simplified. The Waxman framework defines the term "broadband Internet access service," in part, as "[a] consumer retail service, by wire or radio, that provides high-speed capability to transmit data to and receive data from all or substantially all Internet endpoints,...." [emphasis mine]. The emphasized language is not only a completely new conception of what Internet access is, it opens the door to a broadband access provider evading the open Internet rules by providing a prioritized, Internet access-like service that transmits and receives data from less than "substantially all Internet endpoints." A better option for this definition is the far simpler one that the FCC proposed last fall. Broadband Internet access was defined then as "Internet Protocol data transmission between an end user and the Internet," and Broadband Internet access service is defined as "[a]ny communications service by wire or radio that provides broadband Internet access directly to the public, or to such classes of users as to be effectively available directly to the public." These are commonly recognized definitions not amenable to game playing.

3. Paid Prioritization should be presumptively unreasonable. The Waxman framework says nothing about whether a broadband access provider can sell "Quality of Service" (QoS) guarantees to application, content and service providers to ensure that their services load faster and/or with less jitter than competitors. By prohibiting only "unjust and unreasonable" discrimination, access providers will surely make the case that so long as they offer QoS to everyone on non-discriminatory prices, terms and conditions, such prioritization is allowed. While I believe that the order accompanying the rules has some language expressing the Commission's concern with paid prioritization, that language should be strengthened to shift the burden on the broadband access provider to demonstrate why such prioritization is necessary and why it is in the public interest.

Public Knowledge's difficult decision to support the Waxman framework was predicated on the assurances of the Congressman and his staff that the proposal was a floor, and not a ceiling for FCC action if the framework was not enacted into law. Right now, the FCC is at the floor, and the only place to go is up.